Stefan Graziadei University of Graz and University of Antwerp

Six models for Reforming the Selection of Judges to the BiH Constitutional Court Stefan Graziadei University of Graz and University of Antwerp Working paper, No. 14 January 2016 Summary Following the decision on the unconstitutionality of the Day of the Republic (U-3/13) in late 2015, Bosnian Serbs and Croats vowed to terminate the mandate of international judges of the country’s constitutional court. If the Bosnian parliament failed to act, political leaders from the Bosnian Serb entity would call a referendum on the Court and drop out of state institutions. Against the backdrop of this political threat, Bosnians need to debate if they still need international judges or whether the Court’s composition should be reformed. Comparatively, the presence of international judges in national apex courts remains an exception. This paper will not enter the debate on whether it is time to call time on international judges, but will show how the composition of the Court could be reformed. Politicians could draw inspiration from several models discussed in the paper: the domestic model, the German model, the Belgian model, the ECtHR model, and the D’Hondt model. However, the possibility is not excluded that the very changes that Bosnian Serb politicians demand might require constitutional reform. About the author Stefan Graziadei has studied Political Science at the University of Padua, the UWE Bristol, the ULB Brussels and the University of California in San Diego. His academic interest focuses on comparative constitutional law, comparative politics, minority rights, the politics of divided societies, Europeanization and, in relation to that, post conflict state building in former Yugoslav societies. He is fluent in German, Italian, French, English and Spanish. His doctoral research analyzes how constitutional courts shape and are shaped by the constitutional structure of consociations. He is a PhD student at the Universities of Antwerp and Graz; you can contact him at [email protected]; or [email protected]. 1 Table of Contents 1. Political Background ............................................................................................................................................... 3 2. International judges in domestic constitutional courts ........................................................................... 4 3. Brief introduction to Bosnia and its Constitutional Court .................................................................... 10 4. A Law on the Constitutional Court without constitutional reform? ................................................. 14 5. Six models for reforming selection to the Bosnian Constitutional Court ....................................... 19 5.1. The domestic model ...................................................................................................................................... 19 5.2. The Belgian model .......................................................................................................................................... 21 5.3 The German model ......................................................................................................................................... 25 5.4 The ECtHR model ............................................................................................................................................ 26 5.5 The D Hondt model ........................................................................................................................................ 28 6. Other ways’ to increase the legitimacy and representativeness ......................................... 30 7. Conclusion ................................................................................................................................................................Court’s . 34 8. Bibliography ............................................................................................................................................................. 36 2 1. Political Background Following the decision of the Bosnian Constitutional Court on the unconstitutionality of the Day of the Republic (U-3/13), 1 all major political parties in the Republika Srpska entity vowed to terminate the mandate of international judges. Supported by Bosnian Croats, 2 Bosnian Serb political parties demand that the state parliament approves a Law on the Constitutional Court within the next 120 days.3 According to the intention of RS politicians, the current model of judicial selection should be extended by analogy to replace international judges.4 The RS will call a referendum on the Constitutional Court and drop out of state institutions,5 should the Court not be reformed. The aim of the following text is very much practical: to feed the discussion on reform of the selection of judges to Bosnia’s Constitutional Court. The text is organized as follows: (1) it provides a comparative introduction to the presence of international judges in domestic constitutional courts, (2) it gives an overview over the current composition and function of the BiH Constitutional Court, (3) it discusses whether the composition of the Court can be changed without constitutional reform, (4) it points out which models BiH politicians could consult for reforming judicial selection to the Court, and (5) it shows other ways to increase the legitimacy and independence of the Court. 1 Stefan Graziadei, 'The Unconstitutional Holiday: Bosnian Constitutional Court Annuls Serb Republic Day', Verfassungsblog, (2015) <http://verfassungsblog.de/en/11971/> [accessed 16 December 2015]. 2 Rodolfo Toe, ‘Bosnian Croats, Serbs Unite Against Foreign Judges’, Balkaninsight, 2 December 2015, http://www.balkaninsight.com/en/article/croat-and-serb-parties-call-for-reform-of-the-constitutional-court-of-bosnia-and- herzegovina-12-01-2015 [accessed 15 December]. 3 Daniel Kovacevic, ‘Bosnian Serbs Plan Challenge to Constitutional Court’, Balkaninsight, 30 November 2015, http://www.balkaninsight.com/en/article/bosnian-serb-leaders-pledge-to-change-bosnia-s-constitutional-court-11-30-2015-1 [accessed 15 December 2015]. 4 Interview with Milorad Dodik, 29 November 2015, FaceTv, http://www.facetv.ba/novost/11099/milorad-dodik-u-cd- u-odluku-mogu-okaciti-macku-o-rep [accessed 15 December 2015]. 5 Srecko Latal, ‘Serb leader warns Bosnia could break up’, Balkaninsight, 2 December 2015, http://www.balkaninsight.com/en/article/bosnian-serb-leader-warns-of-breakup-of-bosnia-12-02-2015 [accessed 15 December 2015]. 3 2. International judges in domestic constitutional courts The presence of international judges in national courts poses challenges to democratic theory. Even today, some European countries, such as the Netherlands and Switzerland,6 forbid constitutional review of legislation. Even more at odds with national sovereignty is the idea that international judges may sit in national apex courts: ”Because of the doctrine of state sovereignty, it sounds almost inconceivable that a foreign citizen should serve on the bench of a national supreme court or a separate constitutional court of another country.” 7 This is particularly true because such courts operate at the boundary between politics and law: they have the power to review legislation, which is based on the will of the people, for conformity with the national constitution.8 While the judgment of external courts on domestic situations requires a re- elaboration of democratic theory away from the national towards an international arena,9 the primary allegiance of international judges remains somewhat ambiguous. For international courts in particular, it is not clear in whose name they speak.10 For instance, an international group of legal experts wrote that foreign nationals would not be accountable to the people of a country: “Leaving the final decision in case of stalemate to foreign citizens in such critical organs as the Supreme Court and others is in stark contradiction to the principle of democracy.”11 But international judges in national courts are fully part of the domestic court, speak in their name and owe 6 Article 190 of the Swiss Constitution provides that federal statutes and international law shall be binding for the Supreme Court. The Netherlands allows for judicial review of statutes in light of international treaties but not the constitution. Maurice Adams and Gerhard van der Schyff, 'Constitutional Review by the Judiciary in the Netherlands a Matter of Politics, Democracy or Compensating Strategy? ', ZaörV, 66 (2006), 399-413. 7 Joseph Marko, 'Foreign Judges: A European Perspective', in Hong Kong's Court of Final Appeal: The Development of the Law in China's Hong Kong, ed. by Simon Young and Yash Ghai (New York: CUP, 2014), pp. 637-65 (p. 637). 8 Ibid. (Marko 2014) 9 Armin Von Bogdandy and Ingo Venzke, 'In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification', European Journal of International Law, 23 (2012). 10 Von Bogdany and Venzke, In whose name. 11 International Expert Panel, A principled basis for a just and lasting Cyprus settlement in the light of International and European Law, para 18, http://agora-dialogue.com/2005/10/12/a-principled-basis-for-a-just-and- lasting-cyprus-settlement-in-the-light-of-international-and-european-law/ [accessed 16 December 2015]. 4 their first allegiance to national law.12 The situation becomes more complicated when there are strong tensions between national constitutional law and international law.13 Still, because these

Load more